FOURTH SECTION

DECISION

Application no . 21296/09 Andrzej KURSA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 22 September 2015 as a Committee composed of:

Päivi Hirvelä , President, Krzysztof Wojtyczek , Yonko Grozev , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 14 April 2009 ,

Having regard to the declaration submitted by the respondent Government on 9 April 2015, requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Andrzej Kursa, is a Polish national, who was born in 1960 and is detained in Herby Prison.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

The application had been communicated to the Government.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

Criminal proceedings against the applicant and his pre ‑ trial detention

On 27 September 2001 the applicant was arrested and charged with double murder, an attempt to murder another person and with uttering threats.

On the following day he was detained on remand.

The investigation was conducted by the Przemyśl Regional Prosecutor ( Prokuratura Okręgowa ).

The applicant ’ s detention was subsequently extended by numerous court decisions, inter alia those given by the Kraków Regional Court on 23 September 2002, on 16 June 2003 (amended but essentially upheld by the Kraków Court of Appeal ( Sąd Apelacyjny ) on 30 July 2003) and by the Court of Appeal on 24 September 2003 (upheld by the same court on 23 October 2003), on 22 April 2004 (upheld on 13 May 2004) and on 27 May 2004 (upheld on 23 June 2004).

In extending the applicant ’ s detention, the domestic courts repeatedly relied on the reasonable suspicion that he had committed the offences in question . They considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the gravity of the offences in question and the likelihood of a heavy prison sentence being imposed on the applicant after conviction. The courts also stressed the relative complexity of the proceedings resulting from certain difficulties in assessing the applicant ’ s mental health situation. They also observed that the applicant by his own behaviour had often contributed to the length of proceedings and that of his detention, in particular by his repeated refusals to undergo psychological examinations.

Meanwhile, on 13 September 2002 the bill of indictment was lodged with the Kraków Regional Court.

The Kraków Regional Court requested the Supreme Court to transfer the applicant ’ s case outside of Kraków arguing that it should be in the interests of the administration of justice ( dobro wymiaru sprawiedliwości ). On an unspecified date in 2002 the Supreme Court refused the request.

The trial started on 4 March 2003 (case no. III K 250/01 ). The trial court held twenty ‑ five hearings.

On 27 September 2004 the Kraków Regional Court convicted the applicant as charged and sentenced him to life imprisonment on the charges of double murder and attempted murder. The applicant was also sentenced to one year imprisonment on the charge of uttering threats.

The applicant ’ s legal ‑ aid lawyer lodged an appeal against the first ‑ instance judgment.

On 12 July 2006 the Kraków Court of Appeal essentially upheld the first ‑ instance court ’ s judgment (case no. II AKa 74/05 ). It upheld the sentence of life imprisonment but found that the applicant had acted in a state of diminished responsibility.

The applicant ’ s legal ‑ aid lawyer lodged a cassation appeal on the applicant ’ s behalf.

On 31 May 2007 the Supreme Court partly quashed both of the previous judgments (case no. IV KK 85/07 ). It upheld the applicant ’ s conviction on charges of murder and attempted murder but remitted the case to the Kraków Regional Court for re ‑ examination of the applicant ’ s penalty for commission of these offences. The penalty of one year of imprisonment on the charge of uttering threats was upheld and it remained final.

The retrial started on 27 November 2007. The Kraków Regional Court held altogether seven hearings.

In the course of the retrial the applicant ’ s detention was continually extended by the courts.

In the period from 30 July 2007 until 30 July 2008 the applicant simultaneously served a sentence of one year of imprisonment following his final conviction of uttering threats.

On 6 November 2008 the Kraków Regional Court once again convicted the applicant as charged, sentencing him to life imprisonment.

On the same date the Regional Court extended further the applicant ’ s detention on remand (decision upheld by the Kraków Court of Appeal on 10 June 2009). The applicant ’ s detention was later extended by the same court on 29 April 2009.

The applicant ’ s legal ‑ aid lawyer appealed against the first ‑ instance judgment.

On 13 October 2009 the Kraków Court of Appeal reduced the applicant ’ s sentence to twenty ‑ five years ’ imprisonment and otherwise dismissed his appeal (case no. II AKa 105/09 ).

On 15 September 2010 the Supreme Court dismissed the applicant ’ s cassation appeal as manifestly ill ‑ founded (case no. IV KK 108/10 ).

B. Relevant domestic law and practice

The relevant domestic law and practice concerning the imposition of pre ‑ trial detention ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other, so ‑ called “preventive measures” ( Å›rodki zapobiegawcze ) are stated in the Court ’ s judgments in the cases of GoÅ‚ek v. Poland, no. 31330/02, §§ 27 ‑ 33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22 ‑ 23, 4 May 2006 .

COMPLAINT

The app licant complained under Article 5 § 3 of the Convention that the length of his pre ‑ trial detention was excessive.

THE LAW

The applicant complained about the excessive length of his pre ‑ trial detention. He relied on Article 5 § 3 of the Convention.

After the failure of attempts to reach a friendly settlement, the Government informed the Court by letter of 8 April 2015 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the applica tion in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration –their acknowledgement of the fact that the length of the applicant ’ s pre-trial detention was not compatible with Article 5 § 3 of the Convention.

Having regard to the applicant ’ s distress he allegedly suffered as a result of upper -mentioned violation of Article 5 § 3 of the Convention the Government declare that they offer to pay the applicant the amount of PLN 13,000 (thirteen thousand Polish zloty s ) which is to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses , plus any tax that may be chargeable to the applicant, which they consider to be reasonable in the present circumstances of the case. The above sum will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention of Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of th at period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government would respectfully suggest that the above declaration mig ht be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention...”

T he applicant did not make any comment in reply to the Government ’ s unilateral declaration .

The Cour t re iterates th at Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of parag raph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

To this end, the Cour t has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI; WAZA Spółka z o.o . v. Poland (dec.), no. 11602/02, 26 June 2007; and SulwiÅ„ska v. Poland (dec.), no. 28953/03 , 18 September 2007 ).

The Court has established in a number of cases, including those brought against Poland, its practice concerning complaints under Article 5 § 3 of the Convention about the length of pre-trial detention (see Kauczor v. Poland , no. 45219/06, 3 February 2009 with further references).

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examinat ion of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examinat ion of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 15 October 2015 .

Fatoş Aracı Päivi Hirvelä Deputy Registrar President